[2009] KEHC 365 (KLR)
The court found that the objectors, as wife and son of one of the deceased's sons, were not included in the original succession proceedings and that the petitioners did not object to their entitlement to inherit. The court noted that the grant of letters of administration had not been confirmed, and that any...
Source-derived case information.
- Citation
- [2009] KEHC 365 (KLR)
- Parties
- Petitioner: Phili Mukhwana Etemesi; Petitioner: Rosebella Ayiela; Applicant: Rose Olwangu Mukhwana; Applicant: Rufas Etemesi Mukhwana
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 588 of 1999
- Procedural Posture
- Succession Cause / Ruling on Summons for Revocation or Annulment of Grant
- Outcome
- Application for revocation or annulment of grant not granted; directions issued for confirmation of grant and participation of all beneficiaries.
- Legal Topics
- Succession, Grant of Letters of Administration, Confirmation of Grant, Inheritance Rights, Distribution of Estate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Phili Mukhwana Etemesi
Petitioner
Rosebella Ayiela
Petitioner
Rose Olwangu Mukhwana
Applicant
Rufas Etemesi Mukhwana
Applicant
Procedural Posture
Succession Cause / Ruling on Summons for Revocation or Annulment of Grant
Legal Issues
- 1 Whether the objectors were unlawfully excluded from the list of beneficiaries in the succession cause.
- 2 Whether the petitioners followed the correct procedure in registering themselves as proprietors of the estate property before confirmation of grant.
- 3 Whether the estate of the deceased was properly identified and distributed among all rightful beneficiaries.
Ratio Decidendi
The court found that the objectors, as wife and son of one of the deceased's sons, were not included in the original succession proceedings and that the petitioners did not object to their entitlement to inherit. The court noted that the grant of letters of administration had not been confirmed, and that any transfer of the estate property prior to confirmation was procedurally improper. The court held that all beneficiaries must be given an opportunity to participate in the confirmation and distribution process, and ordered the petitioners to file an application for confirmation of grant, to be served on the objectors, who may then raise any objections to the proposed mode of...
Court Disposition
Application for revocation or annulment of grant not granted; directions issued for confirmation of grant and participation of all beneficiaries.
Orders
- Petitioners to file application for confirmation of grant within 30 days and serve the objectors.
- Objectors may file affidavit of proposed distribution if they object to the petitioners' mode of distribution.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
Succession Cause 588 of 1999
PHILI MUKHWANA ETEMESI
ROSEBELLA AYIELA………………..……. PETITIONERS
V E R S U S
ROSE OLWANGU MUKHWANA
RUFAS ETEMESI MUKHWANA……. APPLICANTS/OBJECTORS
R U L I N G
The two petitioners were issued with a grant of letters of Administration Intestate on 1st March, 2000. The grant has not been confirmed and no application for confirmation of the grant has been filed in court.
The objectors filed their summons for revocation or annulment of Grant on 20th September, 2004 together with their supporting affidavit. They filed a further affidavit on 21st July, 2009 while the petitioners filed their replying affidavit on 18th June, 2009.
The objectors’ contention is that the late RUFAS ETEMESI ESHIKUMO was survived by three sons namely PHILIP MUKHWAMBO ETEMESI, HEZRON MUKHWANA ETEMESIandONZARE SHIKUMU ETEMESI.
The first Objectors are the wife and son of the late HEZRON MUKHWANA ETEMESI. Their objection is that the petitioners did not include them in the Succession Cause and that the estate of Rufas Etemesi Eshikumo included plot Number BUTSOTSO/BUKURA/431 measuring 7. 5 acres and that the deceased had sub-divided the land and shared it amongst his three sons. The petitioners have transferred the land into their names without giving the objectors their share .
When the petitioners filed this petition, they listed the following as the survivors –
Philip Mukhwambo Etemesi – son
Rosebellah Ayiela – daughter –in-law
Eshikumo Mukhwana – grandson
Rufas Etemesi - grandson
In the replying affidavit sworn on 18th June, 2009, the Petitioners do not object to the objectors claim that they are entitled to inherit the deceased. I believe survivors indicated in the affidavit in support of the petition for letters of Administration named as Rufas Etemesi is the 2nd Objector herein. Paragraph 9 of the said affidavit states that the petitioner will make an application for confirmation of the grant and will set out the way the estate shall be distributed.
The objectors contend that the petitioners have registered themselves as the proprietors of Plot No. BUTSOTSO/BUKURA/431. No document has been annexed to establish this allegation. However, if that contention is correct, then the petitioner did not follow the correct procedure as the share for each beneficiary has not been identified for distribution.
I do order that the petitioners file their application for confirmation of Grant within 30 days hereof and the said application should be serve upon the objectors. Should there be any objection to the mode of distribution proposed by the petitioners, then the objectors shall file their affidavit stating how they propose to distribute the estate. In the meantime the petitioners are hereby restrained from transferring plot No. BUTSOTSO/BUKURA/431 to anybody pending the confirmation of the grant. Each party shall meet its own costs.
Delivered, dated and signed at Kakamega this 27th day of October, 2009
SAID J. CHITEMBWE
J U D G E